CHAPTER THE TWENTY-SECOND. OF COMMITMENT AND BAIL. WHEN a delinquent is arrested by any of the means mentioned in the preceding chapter, he ought regularly to be carried before a justice of the peace: and how he is there to be treated, I shall next shew, under the second head, of commitment and bail. THE justice before whom such prisoner is brought, is bound immediately to examine the circumstances of the crime alleged and to this end, by statute 2 & 3 Ph. & M. c. 10. he is to take in writing the examination of such prisoner, and the information of those who bring him: which, Mr. Lambard observes, was the first warrant given for the examination of a felon in the English law. For, at the common law, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men. (1) If upon this inquiry it a Eirenarch. b. 2. c. 7. See pag. 357. (1) The st. 2 & 3 Ph. & M. c. 10. is an extension of the 1 & 2 Ph. & M. c.13. The first of these relates to the examination of the prisoner and the witnesses against him, in cases where the justices proceed to bail him; the latter, to cases in which they commit him. The provisions are nearly the same; but it is not to be understood, as might be inferred from the text, that these statutes warrant the wringing out the prisoner's offence from himself; on the contrary, he is perfectly at liberty to say nothing, and answer no questions if he is disposed to speak, a humane and prudent magistrate will feel it to be his duty to caution him against saying any thing which may prejudice himself. After this warning, and a distinct intimation, where inducements have been previously held out to him to confess, that such confession will avail him nothing in remission of punishment, whatever the prisoner says manifestly appears, that either no such crime was committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him. (2) Otherwise he must either be committed to prison, or give bail: that is, put in securities for his appearance, to answer the charge against him. This commitment therefore being only for safe custody, wherever bail will answer the same intention, it ought to be taken; as in most of the inferior crimes but in felonies, and other offences of a capital [297] nature, no bail can be a security equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit, to save his own life? and what satisfaction or indemnity is it to the public, to seize the effects of them who have bailed a murderer, if the murderer himself be suffered to escape with impunity? Upon a principle similar to which the Athenian magistrates, when they took a solemn oath, never to keep a citizen in bonds that could give three sureties of the same quality with himself, did it with an exception to such as had embezzled the public money, or been guilty of treasonable practices ". What the nature of bail is, hath been shewn in the preceding book, viz. a delivery or bailment, of a person to his sureties, upon their giving, (together with himself,) sufficient security for his appearance: he being supposed to continue in their friendly custody, instead of going to gaol. In civil cases we have seen that every See Vol. III. page 290. Pott. Antiq. b.1. c.18. is evidence against himself upon his trial. His examination must not be upon oath, a rule arising from the extreme anxiety of the courts to ascertain that it is purely voluntary. The information of the witnesses must be upon oath, the prisoner is entitled to cross-examine them; but neither party has a right to legal assistance before the magistrate, though there are few cases in which it would be refused to either. The information of the witnesses may be read upon the trial as evidence, if it be shewn that they are dead, unable to travel, or kept out of the way by the prisoner. 2 Hawk. P.C. c. 46. s. 3-10. 1 B. & C.37. (2) This sentence is warranted by the authorities of Crompton, Lambard, Dalton, Hale, and Hawkins, who leave little or no discretion in the justice where the charge against the prisoner is positive; but these authorities were questioned in a recent case (1 B. & C. 43.), and the opinion seems now to be, that the justice is to exercise a somewhat more liberal discretion, and not to commit or detain a party on bail, however positively accused, if the balance of testimony be strongly in favour of his innocence. defendant is bailable; but in criminal matters it is otherwise. Let us therefore inquire in what cases the party accused, ought or ought not to be admitted to bail. AND, first, to refuse or delay to bail any person bailable, is an offence against the liberty of the subject, in any magistrate by the common law, as well as by the statute Westm. 1. 3 Edw. 1. c. 15., and the habeas corpus act, 31 Car. II. c. 2. And lest the intention of the law shall be frustrated by the justices requiring bail to a greater amount than the nature of the case demands, it is expressly declared by statute 1 W. & M. st. 2. c.2. that excessive bail ought not to be required; though what bail shall be called excessive, must be left to the courts, on considering the circumstances of the case, to determine. And, on the other hand, if the magistrate takes insufficient bail, he is liable to be fined, if the criminal doth not appear. Bail may be taken either in court, or in some particular cases by the sheriff, coroner, or other magistrate: but most usually by the justices of the peace. Regularly, in all offences, either against the common law or act of parliament, that are below felony, the offender [ 298 ] ought to be admitted to bail, unless it be prohibited by some special act of parliament'. In order, therefore, more precisely to ascertain what offences are bailable, LET us next see, who may not be admitted to bail, or what offences are not bailable. And here I shall not consider any one of those cases in which bail is ousted by statute, from prisoners convicted of particular offences: for then such imprisonment without bail is part of their sentence and punishment. But, where the imprisonment is only for safe custody before the conviction, and not for punishment afterwards, in such cases bail is ousted or taken away, wherever the offence is of a very enormous nature: for then the public is entitled to demand nothing less than the highest security that can be given, viz. the body of the accused; in order to insure that justice shall be done upon him, if guilty. Such persons, therefore, as the author of the mirror observes, have no h other sureties but the four walls of the prison. By the antient common law, before and since the conquest, all felonies were bailable, till murder was excepted by statute: so that persons might be admitted to bail before conviction almost in every case. But the statute Westm. 1. 3 Edw. I. c. 15. takes away the power of bailing in treason, and in divers instances of felony. The statutes 23 Hen. VI. c. 9. and 1 & 2 Ph. & Mar. c. 13. give farther regulations in this matter; and upon the whole we may collect, that no justice of the peace can bail, 1. Upon an accusation of treason: nor, 2. Of murder: nor, 3. In case of manslaughter, if the prisoner be clearly the slayer, and not barely suspected to be so; or if any indictment be found against him: nor, 4. Such as, being committed for felony, have broken prison; because it not only carries a presumption of guilt, but is also superadding one felony to another. 5. Persons outlawed: 6. Such as have abjured the [299] realm; 7. Approvers, of whom we shall speak in a subsequent chapter, and persons by them accused: 8. Persons taken with the mainour, or in the fact of felony: 9. Persons charged with arson: 10. Excommunicated persons, taken by writ de excommunicato capiendo: all which are clearly not admissible to bail by the justice. Others are of a dubious nature; as, 11. Thieves openly defamed and known; 12. Persons charged with other felonies, or manifest and enormous offences, not being of good fame: and 13. Accessories to felony, that labour under the same want of reputation. These seem to be in the discretion of the justices, whether bailable The last class are such as must be bailed upon offering sufficient surety; as, 14. Persons of good fame, charged with a bare suspicion of manslaughter, or other inferior homicide; 15. Such persons, being charged with petit larceny, or any felony not before specified: or, 16. With being accessory to any felony. Lastly, it is agreed that the court' of king's bench (or any judge thereof in time of vacation) may bail or not. h 2 Inst. 189. m In omnibus placitis de felonia solet accusatus per plegios dimitti, praeterquam in placito de homicidio, ubi ad terrorem aliter statutum est. * 2 Inst. 186. 1 2 Inst. 189. Latch. 12. Vaugh. 157. Comb. 111. 298. 1 Comyns Dig.495. Skin. 683. Salk. 105. Stra. 911. (Glanv. 1.14. c.1.) 1 Comyns Dig. 497. 2 Hal, P. C. 129. for any crime whatsoever, be it treason", murder, or any other offence, according to the circumstances of the case. And herein the wisdom of the law is very manifest. To allow bail to be taken commonly for such enormous crimes, would greatly tend to elude the public justice: and yet there are cases, though they rarely happen, in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law has therefore provided one court, and only one, which has a discretionary power of bailing in any case: exeept only, even to this high jurisdiction, and of course to all inferior ones, such persons as are committed by either house of parliament, so long as the session lasts or such as are committed for contempts by any of [ 300 ] the king's superior courts of justice P. UPON the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimus of the justice, or warrant under his hand and seal, containing the cause of his commitment: there to abide till delivered by due course of law. But this imprisonment, as has been said, is only for safe custody, and not for punishment therefore in this dubious interval, between the commitment and trial, a prisoner ought to be used with the utmost humanity; and neither be loaded with needless fetters, nor subjected to other hardships than such as are absolutely requisite for the purpose of confinement only; though what are so requisite, must too often be left to the discretion of the gaolers; who are frequently a merciless race of men, and, by being conversant in scenes of misery, steeled against any tender sensation. Yet the law (as formerly held) would not justify them in fettering a prisoner, unless where he was unruly, or had attempted to escape': this being the humane language of our antient lawgivers", "custodes poenam sibi com"missorum non augeant, nec eos torqueant; sed omni saevitia “remota, pietateque adhibita, judicia debite exequantur.” In the reign of queen Elizabeth it was the unanimous opinion of the judges, that no court could bail upon a commitment, for a charge of high treason by any of the queen's privy council. (1 Anders. 298.) In omnibus placitis de felonia solet accusatus per plegios dimitti, praeterquam in placito de homicidio. (Glan. 1. 14. c. 1.) 2 Inst. 381. 3 Inst. 34, |